Steinke. v. State , 33 Tex. Crim. 65 ( 1893 )

Appellant was convicted of an assault with intent to rape one Annie Volmer, and his punishment assessed at five years in the State penitentiary. On trial the appellant having proved by one Print that the prosecutrix's character for chastity was bad, on cross-examination by the State the witness testified that one Miss Mason had stated to his wife in his presence that prosecutrix was locked up in a room in an hotel with a man for two hours. Appellant then offered Miss Mason to prove that this statement was true, but, on objection by the State, the testimony was ruled out, and appellant excepted. It is always competent, in cases of this kind, to impeach the character of the prosecutrix for want of chastity, not to justify or excuse the act, but to raise the presumption of consent. The proof may be made by general reputation, or by acts of illicit intercourse with appellant himself. Wilson's case, 17 Texas Crim. App., 533. But we may concede that the rule might be extended to proof of illicit intercourse with other men. People v. Abbot, 19 Wend., 194; Benstine v. The State, 2 Lea, 169. Still the ruling of the court would not be reversible error. Such testimony becomes material only where there is some question as to the consent of the prosecutrix. In this case there seems to be no question as to the force used and the want of consent. As said by the court in the Wilson case, supra, rape may be committed on the most notorious prostitute, and, if the physical facts and personal violence are proven, it were worse than idle to attempt to rebut them simply by proof of the want of chastity. The judgment is affirmed.

Affirmed.

Judges all present and concurring.